Roe’s Savior: The Equal Rights Amendment (ERA)

The Equal Rights Amendment is one of the most polarizing topics in American politics. Ostensibly, the purpose of the Equal Rights Amendment (ERA) is to ensure that men and women are guaranteed the same rights by law. The core text of the ERA is short and simple:

Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Estimated reading time: 8 minutes.
Picture: The United States Senate chamber where the ERA will be debated.

United States Senate chamber. Public domain image.

The text alone doesn’t seem harmful. If interpreted properly, it could be helpful, as it is obviously wrong to unfairly discriminate against women. Unfortunately, rather than addressing legitimate discrimination grievances, this clause has instead been interpreted as granting a right to abortion. Pro-choice advocates are using the ERA as a Trojan horse to sneak the right to abortion into the U.S. Constitution under the guise of “gender equality.” [Tweet that!]

Adding an amendment to the U.S. Constitution requires two things: Congress must pass the amendment, and 38 states must ratify (pass) it. After Congress passed the ERA in 1972, the states had 10 years to meet this ratification quota. 35 states ratified the ERA within five years, and the amendment was initially very popular. However, this popularity was present because many states did not believe abortion to be a “right’ protected in the ERA, as Roe v. Wade had not been decided yet when the ERA passed. Consequently, five states rescinded their ratification in the years following Roe. The Constitution does not specify whether a state may rescind its ratification of an amendment, and the Supreme Court will likely have to make a ruling on this, which could be a long and controversial process.

As of now, 37 states have ratified the ERA at some point in time. The initial ten-year ratification deadline has expired; however, if one more state ratifies the ERA, the amendment could still be added to the U.S. Constitution if it is passed by Congress again. While the current Republican majority in the Senate would likely block the ERA, this is not a long-term solution. Pro-choice Democrats who support the ERA will almost certainly regain both chambers of Congress eventually, so if a 38th state ratifies it and the Supreme Court determines all of those ratifications to be valid, it will only be a matter of time until the ERA becomes the next amendment in the U.S. Constitution.

It’s not only about abortion. But it’s mostly about abortion.

Many of the ERA’s initial supporters lived in a pre-Roe America. Many of these people didn’t believe the fight for “gender equality” had to be paired with pro-choice policy, but unfortunately, that is what the ERA has evolved into. In modern America, the ERA is a monumental threat to the pro-life cause, and we must oppose it in no uncertain terms. Many ERA advocates try to dodge the amendment’s pro-choice agenda, but any honest and factual assessment of the ERA reveals that its language can and has been construed to protect so-called “reproductive rights.”

According to the Guttmacher Institute, 15 states have laws that direct Medicaid to pay for “medically necessary” abortions, and the official ERA website concedes that state Equal Rights Amendments were used to uphold such laws in Connecticut and New Mexico. The website also uses strong pro-choice rhetoric, stating:

[state ERAs] prevent the government from using fiscal pressure to exert a chilling influence on a woman’s exercise of her constitutional right to make medical decisions about her pregnancy. (Emphasis added.)

Additionally, the ERA website explicitly states that ratifying the ERA into the U.S. Constitution would “provide a strong legal defense against a rollback of women’s rights. (including but not limited to: Roe v. Wade…).” Even the American Bar Association has written that state equal rights amendments “have been very effective in cases involving reproductive rights.”

Furthermore, much of the media has shown their hand and confirmed the ERA’s role in cementing the right to abortion in the U.S. Constitution. In 2018, The Daily Beast published an article discussing the ERA’s relationship with abortion, stating that it was the best way to save Roe. The author openly confessed that ERA advocates view abortion as a staple of gender equality in stating:

Women’s equality necessarily requires reproductive and bodily autonomy, and without control over our bodies, women cannot participate as full and equal citizens in this country…Several state equal rights amendments have already interpreted this way, and could point the way forward.

To anyone paying attention, the intentions of ERA advocates could not be more clear: securing abortion rights is a fundamental priority.

Stronger legal protection for abortion

Section 2 of the Equal Rights Amendment states:

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

In other words, Congress would have the ability to pass laws protecting abortion rights in all 50 states, which could be very problematic.

As of now, the right to abortion exists in America because of the Supreme Court’s controversial decision in Roe v. Wade, which essentially held that the right to abortion in earlier stages of pregnancy was implicit within the “right to privacy.” This decision continues to be very controversial not just because of the nature of abortion itself, but because the “right to privacy” is not actually in the text of the Constitution. This is part of the reason Roe is at risk to be overturned. Even Justice Ruth Bader Ginsburg has recognized that the “right to privacy” argument in Roe is not a terribly convincing one, and Roe’s increased vulnerability is what has rekindled the efforts of abortion advocates to ratify the ERA.

If the ERA was ratified, and if Congress then passed a law that gave all women and doctors the “right to abortion,” this legislation would be far more likely to withstand a Supreme Court challenge than Roe’s “right to privacy” justification. In other words, if the Supreme Court does strike down Roe and kill the constitutional right to abortion, the ratification of the ERA could bring it back from the dead. That’s why blocking the ERA is so important.

We don’t actually need the ERA to protect women.

ERA advocates seek to gain the public’s support by arguing that the amendment is needed to prevent women from unjust discrimination that isn’t related to abortion; however, the Supreme Court has already struck down many blatantly sexist laws without the ERA.

For example, a former Idaho Probate Code declared that among “several persons claiming and equally entitled to administer [a decedent’s estate], males must be preferred to females.” This law was challenged at the Supreme Court in Reed v. Reed. After the death of Richard Reed, the adult child of Sally and Cecil Reed, his possessions were automatically put into the care of his father because of this law. Sally sued her ex-husband, Cecil, contesting that the law was unconstitutional. In a unanimous decision, the Supreme Court ruled in her favor and determined the Idaho law to be a violation of the Fourteenth Amendment’s equal protection clause.

A similarly discriminatory law was struck down in Virginia in 1996. The state of Virginia had a publicly-funded undergraduate institution called the Virginia Military Institute (VMI), which only allowed males to enroll. The United States sued Virginia, contesting that it had violated the Fourteenth Amendment’s equal protection clause, just as the Idaho law did. The U.S. Fourth Circuit Court agreed and struck down Virginia’s action as unconstitutional.

Virginia responded by opening the Virginia Women’s Institute for Leadership (VWIL) as a sister organization to VMI. The U.S. sued Virginia once again, contesting that the two institutions were not comparable in quality and that the Fourteenth Amendment was still being violated. The Supreme Court delivered a 7-1 decision against Virginia, largely because VWIL did not provide the same level of military training, faculty, and prestige as the male affiliate, VMI. In delivering the opinion of the Court, Justice Ruth Bader Ginsburg stated that “exceedingly persuasive justification” must be provided for laws with sex-based classification. She also added, “[Sex] classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

The fight for legal gender equality that ERA advocates claim to be fighting for has already been won on many fronts, as these Supreme Court decisions demonstrate. Additionally, even if there are some narrowly tailored legislative changes that could further ensure women are treated fairly, the ERA is clearly not the most efficient way to implement such changes. If the rescinded state ratifications are deemed invalid by the Court, the ERA will need an additional five states to ratify it, which may never happen. Furthermore, Section 3 of the ERA clearly states that the amendment would not take effect until two years after its ratification into the U.S. Constitution, which would further prolong the wait.

Those who believe the ERA is necessary for purposes other than abortion can take a much more efficient route to advance their policy agenda: call on Congress to advance a very narrowly tailored piece of legislation to address the specific issue(s) they have in mind. Such legislation would be far more likely to receive bipartisan support, it would have no constitutionality issues, there would be no two-year waiting period after its passage, it would not be dependent on state legislatures, and most importantly, it could have no pro-choice strings attached.

Regardless of one’s position on gender protections unrelated to abortion, there is one thing we should all agree on: the ERA is an absolute mess, and pro-lifers must oppose its ratification.

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The post “Roe’s Savior: The Equal Rights Amendment” originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.”

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